Supreme Court: A vacation bench comprising of Indira Banerjee and Ajay Rastogi, JJ has  granted bail to journalist Prashant Kanojia who was arrested for allegedly making objectionable comments against Uttar Pradesh Chief Minister Yogi Adityanath on social media.

The Court said,

“The fundamental rights guaranteed under the Constitution of India and in particular Articles 19 and 21 of the Constitution of India are non-negotiable.”

The State had argued that as per the verdict of the Court in State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the question of whether a writ of habeas corpus could be maintained in respect of a person who was in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, had already been settled by this Court. Hence, the writ was not maintainable. Rejecting the said contention, the court said,

“As a matter of self-imposed discipline and considering the pressure of mounting cases on this Court, it has become the practice of this Court to ordinarily direct that the High Court first be approached even in cases of violation of fundamental rights. However, Article 32 which is itself a fundamental right cannot be rendered nugatory in a glaring case of deprivation of liberty as in the instant case, where the jurisdictional Magistrate has passed an order of remand till 22.06.2019 which means that the petitioner’s husband- Prashant Kanojia would be in custody for about 13/14 days for putting up posts/tweets on the social media.”

Stating that it was not inclined to sit back on technical grounds, the Court directed that Prashant Kanojia be immediately released on bail on conditions to the satisfaction of the jurisdictional Chief Judicial Magistrate. It, however made clear that it had passed the order in view of the excessiveness of the action taken and that,

“this Order is not to be construed as an approval of the posts/tweets in the social media.”

[Jagisha Arora v. State of Uttar Pradesh, 2019 SCC OnLine SC 766, order dated 11.06.2019]

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